Army Clause

The Congress shall have Power To ...raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years....

Article I, Section 8, Clause 12

For most Americans after the Revolution, a standing army was one of the most dangerous threats to liberty. In thinking about the potential dangers of a standing army, the Founding generation had before them the precedents of Rome and England. In the first case, Julius Caesar marched his provincial army into Rome, overthrowing the power of the Senate, destroying the republic, and laying the foundation of empire. In the second, Cromwell used the army to abolish Parliament and to rule as dictator. In addition, in the period leading up to the Revolution, the British Crown had forced the American colonists to quarter and otherwise support its troops, which the colonists saw as nothing more than an army of occupation. Under British practice, the king was not only the commander in chief; it was he who raised the armed forces. The Framers were determined not to lodge the power of raising an army with the executive.

Many of the men who met in Philadelphia to draft the Constitution, however, had the experience of serving with the Continental Line, the army that ultimately bested the British for our independence. Founders like George Washington, James Madison, and Alexander Hamilton were also acutely aware of the dangers external enemies posed to the new republic. The British and Spanish were not only on the frontiers of the new nation. In many cases they were within the frontiers, allying with the Indians and attempting to induce frontier settlements to split off from the country. The recent Shays's Rebellion in Massachusetts had also impelled the Framers to consider the possibility of local rebellion.

The "raise and support Armies" clause was the Framers' solution to the dilemma. The Constitutional Convention accepted the need for a standing army but sought to maintain control by the appropriations power of Congress, which the Founders viewed as the branch of government closest to the people.

The compromise, however, did not satisfy the Anti-Federalists. They largely shared the perspective of James Burgh, who, in his Political Disquisitions (1774), called a "standing army in times of peace, one of the most hurtful, and most dangerous of abuses." The Anti-Federalist paper A Democratic Federalist called a standing army "that great support of tyrants." And Brutus, the most influential series of essays opposing ratification, argued that standing armies "are dangerous to the liberties of a people...not only because the rulers may employ them for the purposes of supporting themselves in any usurpation of powers, which they may see proper to exercise, but there is a great hazard, that any army will subvert the forms of government, under whose authority, they are raised, and establish one, according to the pleasure of their leader." During the Virginia ratifying convention, George Mason exclaimed, "What havoc, desolation, and destruction, have been perpetrated by standing armies!" The Anti-Federalists would have preferred that the defense of the nation remain entirely with the state militias.

The Federalists disagreed. For them, the power of a government to raise an army was a dictate of prudence. Thus, during the Pennsylvania ratifying convention, James Wilson argued that "the power of raising and keeping up an army, in time of peace, is essential to every government. No government can secure its citizens against dangers, internal and external, without possessing it, and sometimes carrying it into execution." In The Federalist No. 23, Hamilton argued, "These powers [of the federal government to provide for the common defense] ought to exist without limitation: because it is impossible to foresee or define the extent or variety of national exigencies, or the correspondent extent & variety of the means which may be necessary to satisfy them."

Nonetheless, both Federalists and Anti-Federalists alike expressed concerns about a standing army, as opposed to a navy or the militia. Accordingly, this is the only clause related to military affairs that includes a time limit on appropriations. The appropriations power of Congress is a very powerful tool, and one that the Framers saw as particularly necessary in the case of a standing army. Indeed, some individuals argued that army appropriations should be made on a yearly basis. During the Constitutional Convention, Elbridge Gerry raised precisely this point. Roger Sherman replied that the appropriations were permitted, not required, for two years. The problem, he said, was that in a time of emergency, Congress might not be in session when an annual army appropriation was needed.

Since the time of the Constitution, legal developments based on the clause have been legislatively driven, and barely the subject of judicial interpretation. With the establishment of a Department of Defense in 1947, Army appropriations have been subsumed by a single department-wide appropriation that includes the Army, the Navy, and the Air Force (established in 1947), as well as other agencies of the department. Despite periodic congressional efforts to move to a two-year appropriations cycle, the annual appropriations for the military are the rule, although not for the reasons that animated Elbridge Gerry during the Constitutional Convention. In addition, the Armed Services Committees of Congress have taken on the responsibility of authorizing almost all aspects of the defense budget as well as appropriating the funds for the services.

The character of the United States Army has changed significantly since the constitutional period in two fundamental ways. The first was its way of mobilizing. The second was its orientation and purpose.

With respect to wartime mobilization, Hamilton and later John C. Calhoun envisioned the United States Army as an "expansible" force. A small peacetime establishment would serve as the foundation for a greatly expanded force in times of emergency. The emergency ended, the citizen-soldiers would demobilize and return to their civilian occupations. With modifications, this was essentially the model for mobilization from the Mexican War through World War II. During the Cold War, the United States for the first time in its history maintained a large military establishment during peacetime. Even so, the fact that soldiers were drafted meant that citizen-soldiers continued to be the foundation of the Army. But with the end of the draft in 1973, the citizen-soldier was superseded by the long-term professional.

The draft, of course, has been a controversial issue. Although compulsory military service can be traced to the colonial and revolutionary period in America, it usually involved the states obligating service in the militia. The United States did not have a national draft until the Civil War, and did not resort to a peacetime draft until 1940. Opponents of a draft have used a number of constitutional arguments in support of their position. The Supreme Court has ruled, however, that a draft is constitutional. This includes a draft during peacetime and the power to dispatch draftees overseas. Nor does a draft intrude on the state's right to maintain a militia. Selective Draft Law Cases (1918). An example of the Court's reasoning is found in Holmes v. United States (1968): "the power of Congress to raise armies and to take effective measures to preserve their efficiencies, is not limited by the Thirteenth Amendment or the absence of a military emergency." Nonetheless, the Court has, for some time now, been broadening exemptions to the draft, such as those with conscientious objections to war.

The purpose of the United States Army has not always been primarily to win the nation's wars, but to act as a constabulary. Soldiers were often used during the antebellum period to enforce the fugitive slave laws and suppress domestic violence. The Fugitive Slave Act of 1850 permitted federal marshals to call on the posse comitatus to aid in returning a slave to his owner, and Attorney General Caleb Cushing issued an opinion that included the Army in the posse comitatus.

In response, Congress enacted the Posse Comitatus Act (1878), which prohibited the use of the military to aid civil authorities in enforcing the law or suppressing civil disturbances unless expressly ordered to do so by the President. The Army welcomed the legislation. The use of soldiers as a posse removed them from their own chain of command and placed them in the uncomfortable position of taking orders from local authorities who had an interest in the disputes that provoked the unrest in the first place. As a result, many officers came to believe that the involvement of the Army in domestic policing was corrupting the institution.

In 1904, Secretary of War Elihu Root reoriented the Army away from constabulary duties to a mission focused on defeating the conventional forces of other states. This view has shaped United States military culture since at least World War II and continues to this day. Whether the exigencies of a modern war against terrorism once again changes the military's mission towards domestic order is yet to be seen.